ORDER J.N. Takru, J. - Haji Khairullah has filed this revision against the order of acquittal, dated 30-9-1964, passed by the learned Additional District Magistrate (Judicial) Gorakhpur, in case No. 83 of 1964, State v. Mohammad Jamil. 2. The brief facts, giving rise to this revision, are as follows: The police of Police Station Kotwali, Gorakhpur submitted a charge-sheet, u/s 377 IPC, against Mohammad Jamil the opposite-party--which was received in the court of the Additional District Magistrate (J), Gorakhpur on 23-6-1964. On 26-6-1964, the learned A.D.M. (J), ordered the case to be registered and the prosecution witnesses to be summoned for 7-7-1964. On 7-7-1964, the learned A.D.M. (J) ordered that the case would proceed as an enquiry to see whether there were grounds for committing it to the Court of Session and summoned two witnesses for 29-7-1964. Before, however, the recording of the evidence started on 29-7-1964, the opposite party moved an application stating, inter alia, that as the case was also triable by a Magistrate 1st Class and there was nothing on the record to justify the case being committed to the Court of Session, it might be tried as a warrant case. The learned A.D.M. (J) allowed the application, but reserved the right to commit it to the Court of Session if, at any subsequent stage, he thought that the case was one which ought to be tried by that court. Thereafter the recording of the evidence started and continued till 26-9-1964. After the prosecution evidence was closed on 26-9-1964 and the statement of the opposite-party was recorded and his counsel made a statement that no defence evidence was to be produced, an application was moved by the Applicant that the recording of the statement of the Investigating Officer be adjourned "the question of converting the case into inquiry adopting committal proceedings and committing the case to the Court of Session, be considered at that very stage and orders be passed thereon." On this application the learned A.D.M. (J) ordered the A.P.P. to file his report and the opposite-party to submit his objection in writing and pending the filing of the above ordered the case to be listed for arguments on. 28-9-1964. 28-9-1964. Thereafter on the 28th and 29th September, 1964, arguments were heard, but as the learned Counsel for the complainant was not present on the latter date, the case was ordered to be listed at 10 a.m the next day for his arguments. The complainant's learned Counsel, however, did not turn up at all on 30-9-1964. Thereupon the learned A.D.M. (J) first took up the complainant's application, dated, 26-9-1964 and after considering it along with the written objections filed by the opposite-party and the report of the A.P.P. passed an order rejecting the said application. Thereafter he passed the judgment under revision acquitting the opposite-party of the offence u/s 377, IPC. Feeling aggrieved thereby the Applicant filed a revision in the court of the Sessions Judge and when his revision there, was summarily dismissed, he preferred the aforesaid revision to this Court. 3. On behalf of the Applicant his learned Counsel, Sri Jagdish Misra, advanced two contentions in support of this revision. His first contention was that as on 7-7-1964, the learned A.D.M. (J) had decided to proceed with the case as an enquiry Under Ch. XVIII of the Code of Criminal Procedure he had no jurisdiction to review that order and to convert the enquiry into a trial. His second contention was that as the learned A.D.M. (J) was personally interested in the case he, was, anyhow, not competent to try it. After hearing Sri Misra, I am, however, satisfied that neither of these contentions has any force. I shall, therefore, proceed, to deal with them, beginning with, the second contention, as it can be disposed of shortly. 4. Now so far as the second contention is concerned, the most important thing to be noted is that, there is not a scintilla of evidence to show that the learned A.D.M. (J) had any personal interest in the instant case. The only circumstance on which this contention appears to be based is the fact that the opposite-party is the official stenographer of the District Planning Officer, Gorakhpur. However, in the absence of some thing more convincing, such a slender circumstance is hopelessly insufficient to warrant the conclusion that the A.D.M. (J) was personally interested in the case. This contention, therefore, fails. 5. I shall now examine the first contention. The facts on which it is based have been set out earlier, but for sake of convenience may be repeated here. This contention, therefore, fails. 5. I shall now examine the first contention. The facts on which it is based have been set out earlier, but for sake of convenience may be repeated here. As stated before the learned ADM (J) on receipt of the police report at first decided to proceed with the case as an enquiry u/s 207, Code of Criminal Procedure with a view to see if there were any grounds for committing it to the Court of Session. Subsequently on the application of the Opposite-party he changed his opinion and decided to try the case as a warrant case subject to the condition that if at any time it transpired that it ought to be tried by the Court of Session he would commit it to that court. The Applicant does not appear to have felt aggrieved against that order then, because he did not file any revision against it. Ordinarily, therefore, it would have been too late for him to raise that question now, but as it involved a pure question of law, I allowed to be argued in the interests of justice. Thus the question which has to be considered is whether the procedure adopted by the learned ADM (J) in this case is illegal or improper? 6. Now in the trial of a warrant case instituted on a police and not exclusively triable by the Court of Session or High Court, the Magistrate has two options before him. He may either elect to proceed with the trial himself, in which case he has to follow the procedure laid down for the trial of warrant cases in Chap. XXI Code of Criminal Procedure or he may decide to hold an inquiry u/s 207 Code of Criminal Procedure to see whether any grounds for committing the accused for trial by the Court of Session or High Court has been disclosed, in which case he has to follow the procedure laid down for such inquiries in Chap. XVIII, Code of Criminal Procedure. It is important however to note that the two chapters are not mtually exclusive for there are provisions in the Code providing for a switchover from a trial to an enquiry and vice-versa, viz. Section 347 and Section 207-A(6) respectively. XVIII, Code of Criminal Procedure. It is important however to note that the two chapters are not mtually exclusive for there are provisions in the Code providing for a switchover from a trial to an enquiry and vice-versa, viz. Section 347 and Section 207-A(6) respectively. The former section, inter alia, empowers the Magistrate at any stage of a trial before him, but before signing judgment, to commit the case for trial by the Court of Session or High Court if it appears 10 him that the case is such as ought to be tried by that court; while Section 207-A(6) gives the Magistrate, holding the inquiry, the power to try the case himself, if he is of the opinion that the case is such as should be tried by himself and this power can be exercised by him even after the close of the prosecution evidence, the examination of the accused and hearing the prosecution and the accused. Now, if the Magistrate can change his mind at such a late stage as envisaged in Sub-section (6) I fail to see why he cannot do the same at an earlier stage and in any case, before he has even started recording the evidence as in the present case, provided always that he is satisfied about the necessity or desirability of such a change. The fallacy in Sri Misra's contention appears to lie in the fact that it seeks to equate the opinion formed u/s 207 with a judgment or final order whereas the true position is that the said opinion is only tentative in nature and is open to variation in the course of the enquiry. This conclusion receives support from the provisions of Section 347 Code of Criminal Procedure a gist of which has been set out in an earlier part of this judgment. This section it will be noticed makes provision for an exactly converse situation to that obtaining in the present case, but it serves to emphasise the fact that it is open to the Magistrate to change his opinion and if he could do it at any stage of the trial, he could a fortiori do the same at any stage of the inquiry. Thus all the relevant provisions of the Code of Criminal Procedure militate against the contention of Sri Misra. Thus all the relevant provisions of the Code of Criminal Procedure militate against the contention of Sri Misra. Besides, in the present case it is to be remembered that the learned ADM (J) made it clear in his order dated 29-7-1964, that he was proceeding with the case as a warrant case "for the present," and that if, after the recording of the evidence, he was satisfied that the case was one which should be tried by the Court of Session, he would commit it to that Court. However that situation, did not arise, as on an appraisal of the prosecution evidence he was satisfied that the prosecution had failed to bring home the guilt to the opposite party. I am, therefore, satisfied that the order of acquittal does not suffer from any procedural illegality or impropriety. 7. On behalf of the Applicant reliance was placed on the decisions in State and Another Vs. Seth Chhadami Lal and Others, AIR 1957 All 639 and Thakur Ram Vs. The State of Bihar, AIR 1966 SC 911 . The first decision is clearly distinguishable as the main question falling for consideration in it was whether the Magistrate 'in a case in respect of an offence which is triable alternatively by a Court of Session or a Magistrate was bound to adopt and will be deemed to have adopted the procedure for trial of warrant cases as laid' down in Chap. XXI of the Code' and Chowdhry, J. answered that question in the negative. No such question arises in the present case. As for the second decision, far from helping the Applicant it supports the view taken by me above. It is held therein that: Where the police report suggests the commission of an offence which is exclusively triable by a Court of Session, the Magistrate can nevertheless proceed to try the accused for an offence which is triable by him if he is of the view that no offence exclusively triable by a Court of Session is disclosed. Similarly even in a case where an offence is triable both by a Magistrate and a Court of Session, the Magistrate is of the view that the circumstances do not warrant a trial by a Court of Session, he can proceed with the trial of the accused for that offence himself. 8. Finally, the learned Counsel sought to assail, the judgment on merits. 8. Finally, the learned Counsel sought to assail, the judgment on merits. Sub-section (4) of Section 439 Code of Criminal Procedure however does not empower the High Court to convert a finding of acquittal into one of conviction and all that the High Court can do, in an appropriate case, is to remand it for retrial. In K. Chinnaswamy Reddy v. State of Andhra Pradesh and Anr. 1963 AWR 56 : ACrR 53 the Supreme Court has laid down the principles which should guide the High Court in making an order of remand. It held that as Section 439(4) Code of Criminal Procedure did not authorise the High Court to convert a finding of acquittal into one of conviction, It was all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. The Supreme Court then went on to indicate some of the criteria for determining such "exceptional cases". It held that: It is not possible to lay down the criteria for determining such exceptional cases which could cover all contingencies. Some cases of this kind however may be indicated, which would justify the High Court in interfering with a finding of acquittal in revision. These cases may be : Where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of Section 439(4). It will be noticed that the Supreme Court while making it clear that it was not laying down an exhaustive list of criteria for determining 'exceptional cases' has taken care to indicate that the criteria in each case should be 'of similar nature' to those mentioned by it. In other words the criteria should be analogous in nature to those detailed by the Supreme Court. Thus tested the present order of acquittal does not fall in the category of 'exceptional cases', since it is neither passed by a Court which had no jurisdiction to try the case, nor has that court wrongly shut out or admitted or overlooked any material evidence nor has it committed any procedural illegality which has resulted in miscarriage of justice. There is consequently, no justification for interfering with the order of acquittal and ordering a retrial and this revision must, therefore, fail. 9. One more matter however remains to be decided. It appears that the Applicant filed an affidavit in this revision wherein he alleged that the learned A.D.M. (J) refused to accept certain applications which he moved before him as a result of which he was prejudiced. The opposite-party filed a counter-affidavit denying those allegations and praying that the Applicant be prosecuted for making those false allegations. After perusing the affidavits and examining the record I am of the opinion that the aforesaid allegations of the Applicant are absolutely without any substance and his application (sic) therefore liable to be dismissed. At the same time I am satisfied that the opposite-party has also failed to make out any case for taking action for perjury against the Applicant. Both the prayers are accordingly rejected. 10. Thus for the reasons stated above the revision and the prayer contained in the affidavit of the opposite-party are rejected.